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Rights and Quarantine During the SARS Global Health Crisis: Differentiated Legal Consciousness in Hong Kong, Shanghai, and Toronto

Published online by Cambridge University Press:  01 January 2024

Lesley A. Jacobs
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Abstract

Interventions in public health crises inevitably give rise to concerns about how the balance between rights concerns and community health security might be handled. During the SARS global health crisis, different jurisdictions struggled simultaneously with similar public health challenges posed by the previously unknown and deadly disease. Yet instead of a convergence of strategies, different jurisdictions responded with measures, especially with regard to the use of quarantine, that revealed a pattern of divergence about how to strike the balance between rights concerns and health security. The origins of this article stem from the realization that Toronto's use of quarantine was far more extensive than that of either Hong Kong or Shanghai, two jurisdictions with historically weak records regarding respect for fundamental rights and civil liberties. Perspectives on the balancing of individual rights and community health security are treated here as expressions of legal consciousness. Instead of assuming a uniform legal consciousness in Toronto, Shanghai, or Hong Kong, this article presents legal consciousness as varied among groups of individuals differently situated in the crisis. The promise of this differentiated approach to legal consciousness is that it facilitates both drawing contrasts between perspectives of differently situated groups within the same city and noting commonalities between similarly situated groups in other cities. Through an examination of three distinct perspectives on rights and quarantine in each city—those of senior public health officials, frontline hospital workers, and contacts of SARS patients—the competing legal meanings and understandings about the tensions between community health security and individual rights during the SARS crisis are identified in a way that enables us to better understand the pattern of different uses of quarantine.

Type
Articles of General Interest
Information
Law & Society Review , Volume 41 , Issue 3 , September 2007 , pp. 511 - 552
Copyright
© 2007 Law and Society Association.

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Footnotes

I am grateful for valuable suggestions and insightful comments from Sarah Bidulph, Hualing Fu, Ron Levi, Mary Gallagher, Stephen Marks, Carole Petersen, Pitman Potter, Deborah Stone, Yoshi Wada, He Weidong, Jaeyoun Won, and Jim Wootton. The journal's referees and the editor, Herbert Kritzer, provided numerous constructive criticisms that have tremendously shaped the article. Sun Feiyu and He Weidong were a great help with some Chinese texts and interviews. I also benefited from audiences at the Centre for Asian Research at the University of British Columbia, the Melbourne University Law Centre, the University of Buffalo Law School, the Centre of Criminology at the University of Toronto, Waseda University Law School, and York University's Division of Social Science, as well as the Las Vegas meetings of the Law & Society Association, the Shanghai Asian Studies conference, and the Rights-Based Approaches to Health conference at Emory University. Funds from the Social Sciences and Humanities Research Council of Canada supported this research as part of the Asia Pacific Dispute Resolution project.

References

References

Amar, Akhil Reed (1997) The Constitution and Criminal Procedure: First Principles. New Haven, CT: Yale Univ. Press.Google Scholar
Anti-SARS Taskforce (2003) Report for the People's Republic of China. Beijing: Government of the People's Republic of China.Google Scholar
Asia Pacific Dispute Resolution (APDR) (2005) Human Rights and Health Questionnaire Results, Shanghai (500 respondents), Toronto (200 respondents). Unpublished report.Google Scholar
Awofeso, Niyi (2004) “What's New About the ‘New Public Health’?,” 94 American J. of Public Health 705–9.CrossRefGoogle ScholarPubMed
Baldwin, Peter (1999) Contagion and the State in Europe, 1830–1930. Cambridge, United Kingdom: Cambridge Univ. Press.CrossRefGoogle Scholar
Baldwin, Peter (2005) Disease and Democracy: The Industrialized World Faces AIDS. Berkeley: Univ. of California Press.Google Scholar
Beech, Hannah (2003a) “The Quarantine Blues,” Time Asia. 12 May, http://www.time.com/time/asia/magazine (accessed 25 Feb. 2006).Google Scholar
Beech, Hannah (2003b) “Shanghai has promised the WHO it will revise its diagnostic criteria for SARS. At issue: the real caseload,” Time Asia, 26 May2003, http://www.time.com/time/asia/magazine (accessed 29 Sept. 2004).Google Scholar
Bell, David & World Health Organization Working Group on Prevention of International and Community Transmission of SARS (2004) “Public Health Interventions and SARS Spread, 2003,” 10 Emerging Infectious Diseases, http://www.cdc.gov/ncidod/EID/vol10no11/04-0729.htm (accessed 22 Feb. 2006).CrossRefGoogle Scholar
Burris, Scott (2003) “Quarantine Laws and Public Health Realities,” 33 J. of Law, Medicine & Ethics 69–74.Google Scholar
Campbell, Justice Archie (2004) The SARS Commission Interim Report: SARS and Public Health in Ontario. Toronto: Government of Ontario.Google ScholarPubMed
Campbell, Justice Archie (2005) The SARS Commission Second Interim Report: SARS and Public Health Legislation. Toronto: Government of Ontario.Google Scholar
Campbell, Justice Archie (2007) The SARS Commission Final Report: Spring of Fear, Volume 2. Toronto: Government of Ontario.Google Scholar
Canada Employment Insurance Commission (2005) The 2005 Employment Insurance Monitoring and Assessment Report. Ottawa: Government of Canada.Google Scholar
Canadian International Development Agency (CIDA) (2006) “Governance in China,” http://www.gc.ca/CIDA (accessed 6 May 2006).Google Scholar
Cava, Maureen, et al. (2005) “Risk Perception and Compliance With Quarantine During the SARS Outbreak,” 37 J. of Nursing Scholarship 343–8.CrossRefGoogle ScholarPubMed
Centers for Disease Control and Prevention (CDC) (2003) “Update on SARS Cases–United States and Worldwide, December 2003,” 52 Morbidity & Morality Weekly Report 1203.Google Scholar
Centers for Disease Control and Prevention (CDC) (2004) “Questions and Answers on Legal Authorities for Isolation and Quarantine,” http://www.cdc.gov/ncidod/sars/quarantineqa.htm (accessed 5 April 2005).Google Scholar
Chan, W., et al. (2004) ABSTRACT: “Lessons about compliance from Toronto's SARS quarantine,” 2 Biosecurity and Bioterrorism, http://www.liebertonline.com/bsp (accessed 5 Feb. 2005)Google Scholar
Cheung, Ming-Tat (2003) Testimony before the SARS Commission. Toronto, September 29, 2003.Google Scholar
Davis, Michael, & Kumar, C.Raj (2003) “The Scars of SARS—Balancing Human Rights and Public Health Concerns,” Hong Kong Lawyer (May), http:/www.hk-lawyer.com/2003-5/May03-phprac.htm (accessed 3 Nov. 2005).Google Scholar
D'Cunha, Colin (2003) Powerpoint Presentation to the SARS Commission. Toronto, September 29, 2003.Google Scholar
DeLisle, Jacques (2004) “Atypical Pneumonia and Ambivalent Law and Politics: SARS and the Response to SARS in China,” 77 Temple Law Review, 194–245.Google Scholar
DiGiovanni, Clete, et al. (2004) “Abstract: Factors Influencing Compliance with Quarantine in Toronto During the 2003 SARS Outbreak,” 2 Biosecurity and Bioterrorism 265–72.CrossRefGoogle Scholar
Drache, Daniel, et al. (2003) “Media Coverage of the 2003 Toronto SARS Outbreak: A report on the role of the press in a public crisis,” http://www.robarts.yorku.ca/projects/global/papers (accessed 2 Nov. 2004).Google Scholar
Dwosh, Hy, Hong, Harry, Austgarden, Douglas, Herman, Stanley & Schabas, Richard (2003) “Identification and Containment of an Outbreak of SARS in a Community Hospital,” 168 (11) Canadian Medical Association J. 1415–1420.Google Scholar
Erlick, Larry (2003) Testimony before the SARS Commission Public Hearings. Toronto, September 29, 2003.Google Scholar
Ewick, Patricia, & Silbey, Susan (1998) The Common Place of Law: Stories from Everyday Life. Chicago: Univ. of Chicago Press.CrossRefGoogle Scholar
Farr, Bruce (2003) Testimony before the SARS Commission Public Hearings. Toronto, September 29, 2003.Google Scholar
Feldman, Eric (2000) The Ritual of Rights in Japan: Law, Society, and Health Policy. New York: Cambridge Univ. Press.CrossRefGoogle Scholar
Fidler, David (1999) International Law and Infectious Diseases. Oxford, United Kingdom: Oxford Univ. Press.Google Scholar
Fidler, David (2003) “SARS and International Law,” April, http://www.asil.org/insights (accessed 5 April 2005).Google Scholar
Fidler, David, & Gostin, Lawrence (2006) “The New International Health Regulations: An Historic Development for International Law and Public Health,” 34 J. of Law, Medicine & Ethics 85–94.CrossRefGoogle ScholarPubMed
Gerson, Jen (2005) “Toronto Panned, China Lauded for Response to SARS”, The Globe and Mail, 6 July, A6.Google Scholar
Gonzalez-Martin, Fernando (2003) “Quarantine in severe acute respiratory syndrome (SARS) and other emerging infectious diseases,” 31 J. of Law, Medicine & Ethics S63–5.Google Scholar
Gostin, Lawrence, et al. (2003) “Ethical and Legal Challenges Posed by Severe Acute Respiratory Syndrome,” 290 J. of the American Medical Association 3229–3237.CrossRefGoogle ScholarPubMed
Government of Canada (2003) “Government of Canada provides income relief to SARS affected health care workers,” 2 May, http://www.sdc.gc.ca/en/cs/comm/news/2003/030502b.shtml (accessed 19 April 2006).Google Scholar
Government of Ontario (2003a) “Ontario Finance 2003-04 First Quarter, Quarterly Update—June 30, 2003,” http://www.gov.on.ca/FIN/english/finances/2003 (accessed 1 Dec. 2004).Google Scholar
Government of Ontario (2003b) “Q & A about SARS Income Stabilization Program for Physicians,” http://www.gov.on.ca (accessed 29 Jan. 2005).Google Scholar
Government of Ontario (2003c) “SARS Compassionate Assistance Program,” http://www.forms.ssb.gov.on.ca (accessed 1 Dec. 2004).Google Scholar
Hawkins, Keith (2002) Law as Last Resort. Oxford, United Kingdom: Oxford Univ. Press.Google Scholar
Hawryluck, Laura, et al. (2004) “SARS Control and Psychological Effects of Quarantine, Toronto, Canada,” 10 Emerging Infectious Diseases, http://www.cdc.gov/ncidod/eid/vol10no4/03-0628.htm (accessed 10 April 2006).CrossRefGoogle ScholarPubMed
Hong Kong Mood Disorders Center, The Chinese University of Hong Kong (2003) “Psychosocial Difficulties of Amoy Gardens Residents After the SARS Outbreak,” http://www.cuhk.edu (last accessed January 27, 2005).Google Scholar
Hong Kong Special Administrative Region (SAR) (2003) “Quarantine Violation in Hong Kong,” http://sc.info.gov.hk/gb (accessed 22 Feb. 2006).Google Scholar
Hong Kong Special Administrative Region (30 April 2003) “Press Release: Applications for Government guaranteed loans start on May 5,” http://www.info.gov.hk (accessed 1 Dec. 2004).Google Scholar
Hong Kong Special Administrative Region (31 March 2003a) “Press Release: Emergency Financial Assistance for people affected by SARS,” http://www.info.gov.hk (accessed 1 Dec. 2004).Google Scholar
Hong Kong Special Administrative Region (31 March 2003b) “Press Release: Labour Department issues guidelines to employers and employees,” http://www.info.gov.hk (accessed 1 Dec. 2004).Google Scholar
Hong Kong Special Administrative Region (29 June 2003) “Press Release: Financial Assistance for Family Members of Another Three Health Care Personnel,” http://www.info.gov.hk (accessed 1 Dec. 2004).Google Scholar
Human Rights Watch (2003) “Locked Doors: The Human Rights of People Living With HIV/AIDS in China,” 15 Human Rights Watch.Google Scholar
Information and Privacy Commissioner/Ontario (2004a) “Interim Order MO-1865-I, Appeal MA-030326-1, City of Toronto, (November 16, 2004),” http://www.ipc.on.ca (accessed 4 March 2005).Google Scholar
Jacobs, Lesley (2005) “Universal Hospital Insurance and Health Care Reform: Policy Legacies and Path Dependency in the Development of Canada's Health Care System,” 53 Buffalo Law Rev. 635–61.Google Scholar
Jacobs, Lesley, & Potter, Pitman (2006) “Selective Adaptation and Human Rights to Health in China,” 9 Health and Human Rights 122–46.CrossRefGoogle ScholarPubMed
Kasperski, Jan (2003) “Testimony before the SARS Commission Public Hearings,” Toronto, September 29, 2003.Google Scholar
Kaufman, Joan (2006) “SARS and China's Health Care Response,” in Kleinman, A. & Watson, J., eds., SARS in China: Prelude to Pandemic? Palo Alto, CA: Stanford Univ. Press.Google Scholar
Koller, Donna, et al. (2006) “When Family-Centered Care Is Challenged by Infectious Disease: Pediatric Health Care Delivery During the SARS Outbreaks,” 16 Qualitative Health Research 47–60.CrossRefGoogle ScholarPubMed
Lau, Joseph, et al. (2004) “SARS Transmission, Risk Factors, and Prevention in Hong Kong,” 10 Emerging Infectious Diseases, http://www.cdc.gov/ncidod/eid/vol10no4/03-0628.htm (accessed 10 April 2006).Google ScholarPubMed
Lau, J., et al. (2003) “Monitoring Community Responses to the SARS Epidemic in Hong Kong: from day 10 to day 62,” 57 J. of Epidemiological Community Health 864–70.CrossRefGoogle Scholar
Leung, Carrianne, & Guan, Jian (2004) Yellow Peril Revisited: Impact of SARS on the Chinese and Southeast Asian Canadian Communities. Toronto: Chinese-Canadian National Council.Google Scholar
Lubman, Stanley (1999) Bird in a Cage: Legal Reform in China After Mao. Palo Alto, CA: Stanford Univ. Press.Google Scholar
Liu, Chenglin (2005) “Regulating SARS in China: Law as an Antidote?,” 4 Washington University Global Studies Law Rev. 81–119.Google Scholar
Markovits, Daniel (2005) “Quarantines and Distributive Justice,” 33 J. of Law, Medicine & Ethics 323–68.CrossRefGoogle ScholarPubMed
McDonald, L. Clifford, et al. (2004) “SARS in Healthcare Facilities, Toronto and Taiwan,” 10 Emerging Infectious Diseases, http://www.cdc.gov/ncidod/EID (accessed 30 March 2005).CrossRefGoogle Scholar
Naylor, David (2003) Lessons from SARS: Renewal of Public Health in Canada. Ottawa: Government of Canada.Google Scholar
Nelken, David (2006) “Signaling Conformity: Changing Norms in Japan and China,” 27 Michigan J. of International Law 933–72.Google Scholar
Nelken, David, & Feest, Johannes, eds. (2001) Adapting Legal Cultures. Oxford, United Kingdom: Hart Publishing.Google Scholar
Niedowski, Erika (2003) “Toronto Sees Setback in SARS Battle: Some Refusing to Comply with Quarantine Orders,” Baltimore Sun, 14 AprilGoogle Scholar
Nielson, Mary Beth (2000) “Situating Legal Consciousness,” 34 Law & Society Rev. 1055–90.Google Scholar
Njoo, Howard (2004) SARS: A Canadian Perspective on Lessons Learned. Report Submitted by Canada to the United Nations Meeting, Geneva, Switzerland, 6–10 Dec. 2004.Google Scholar
Officer of the Privacy Commissioner for Personal Data, Hong Kong (2004) 2003 Annual Report, http://www.pco.org (accessed 4 March 2005).Google Scholar
Ontario Ministry of Finance (2004) “Ontario Reports Full-Year Financial Results For 2003-04,” http://www.fin.gov.on.ca/english/media/2004/nr9-pacc.html (accessed 5 May 2006).Google Scholar
Ontario Nurses Association (2004) “ONA launches lawsuit,” 25 March, http://www.ona.org (accessed 12 April 2005).Google Scholar
Ontario Nurses Association (2006) “Judge's decision clears the way for ONA SARS lawsuit,” 33 ONA Visions 24.Google Scholar
Ou, J., Li, Q., & Zeng, G. (2003) “Efficiency of Quarantine During an Epidemic of Severe Acute Respiratory Syndrome—Beijing, China 2003,” 52 Morbidity and Mortality Weekly Report 1037–40.Google Scholar
Peng, Jing, et al. (2003) “Public Health in China: The Shanghai CDC Perspective,” 93 American J. of Public Health 1991–4.CrossRefGoogle Scholar
Peerenboom, Randall (2005) “Assessing Human Rights in China: Why the double standard?,” 38 Cornell International Law J. 71–172.Google Scholar
Peerenboom, Randall (2006) “Human Rights in China,” in Peerenboom, R. et al., eds., Human Rights in Asia: A comparative legal study of twelve Asian jurisdictions, France and the USA. New York: Routledge.CrossRefGoogle Scholar
Potter, Pitman (2004) “Legal Reform in China—Institutions, Culture, and Selective Adaptation,” 28 Law & Social Inquiry 465–95.Google Scholar
PRC Information Office of the State Council of the People's Republic of China (2004) “Progress in China's Human Rights Cause in 2003,” http://www.english.peopledaily.com.cn/whitepaper (accessed 4 March 2005).Google Scholar
Raz, Joseph (1986) The Morality of Freedom. Oxford, United Kingdom: Oxford Univ. Press.Google Scholar
Ries, Nola (2004) “Public health law and ethics: lessons from SARS and quarantine,” 13 Health Law Rev. 3–7.Google ScholarPubMed
Rothstein, Mark (2004) “Are Traditional Public Health Strategies Consistent With Contemporary American Values?,” 77 Temple Law Rev. 175–92.Google Scholar
Rothstein, Mark, et al. (2003) Quarantine and Isolation: Lessons Learned from SARS—A Report to the Centers for Disease Control and Prevention. Louisville, KY: University of Louisville School of Medicine.Google Scholar
Sapsin, Jason, et al. (2004) “SARS and International Legal Preparedness,” 77 Temple Law Rev 155–74.Google Scholar
SARS Expert Committee (2003) SARS in Hong Kong: From experience to action. Hong Kong: Special Administrative Region.Google Scholar
Schabas, Richard (2004) “Severe acute respiratory syndrome: Did quarantine help?,” 15 Canadian J. of Infectious Disease and Medical Microbiology 204.CrossRefGoogle ScholarPubMed
Serradell, Joaquima (2005) SARS. Philadelphia, PA: Chelsea House.Google Scholar
Shanghai Municipal Government (2003) SARS Prevention Announcement No. 2: Medical Observation for those returning from SARS Epidemic Areas. News release from Shanghai government.Google Scholar
Shanghai Yearbook 2004 (2004) [Chinese text] http://www.shanghai.gov.cn/shanghai/node2314/node14926/node14931/index.hmtl (accessed 12 Feb. 2006).Google Scholar
Silbey, Susan (2001) “Legal Culture and Consciousness,” in International Encyclopedia of the Social and Behavioral Sciences. Amsterdam: Elsevier Science.Google Scholar
Sullivan, Kathleen, & Field, Martha (1988) “AIDS and the Coercive Power of the State,” 23 Harvard Civil Rights-Civil Liberties Law Rev. 139–97.Google ScholarPubMed
Svoboda, Tomislav, et al. (2004) “Public Health Measures to Control the Spread of the Severe Acute Respiratory Syndrome During the Outbreak in Toronto,” 350 New England J. of Medicine 2352–61.CrossRefGoogle ScholarPubMed
Toronto Public Health (2003) “Severe Acute Respiratory Syndrome (SARS),” 29 May, http://www.toronto.ca/health (accessed 27 Sept. 2005).Google Scholar
Tsang, Hector, et al. (2004) “Psychosocial Impact of SARS,” 10 Emerging Infectious Diseases, http://www.cdc.gov/ncidod/EID (accessed 30 March 2005).Google ScholarPubMed
Waldron, Jeremy (1993) Liberal Rights. New York: Cambridge Univ. Press.Google Scholar
World Health Organization (2003) Consensus Document on the Epidemiology of Severe Acute Respiratory Syndrome (SARS). Geneva: Department of Communicable Disease, Surveillance and Response.Google Scholar
Yaffe, Barbara (2004) “SARS in Toronto: A Local Public Health Perspective,” http://www.phs.utoronto.ca/sars2004/Yaffe (accessed 5 July 2005).Google Scholar
Yardley, Jim (2005) “After Its Epidemic Arrival, SARS Vanishes,” New York Times, p. 8, 15 MayGoogle Scholar

Cases Cited

Ontario Nurses Assn. v. Sunnybrook and Women's College Health Sciences Centre, CanLII 35717 (ON L.R.B.) (2004).Google Scholar
SARS Assistance and Recovery Act (ON 2003).Google Scholar
Wing v. Xiong, DCCJ 3832/2003 (2003).Google Scholar